BUFFALO, N.Y. -- The struggle of American courts to control the
explosion of intellectual property rights violations on some of the
most traveled highways of cyberspace poses a legal challenge to the
judicial system with implications that could threaten the survival
of Web sites clicked on by the average Internet user every day, a
University at Buffalo Law School expert on online intellectual
property issues said today.

A disturbing trend in these complicated copyright and trademark
cases is a judicial tendency to borrow precedents from criminal
law, explains Mark Bartholomew, UB associate professor of law,
whose new research, "Cops, Robbers and Search Engines: The
Questionable Role of Criminal Law in Contributory Infringement
Doctrine," is forthcoming in the Brigham Young University Law
Review.

"The problem is that what makes sense for liability in criminal
law does not necessarily make sense in the world of intellectual
property," says Bartholomew. "It turns out that the rules of
criminal law are based on very different theoretical justifications
than the rules of intellectual property law."

Much of the issue revolves around what is known as "contributory
infringement law," a legal principle that deals with someone or an
organization that helps someone else commit an act of copyright or
trademark infringement. This can occur either by encouraging
infringers, renting out commercial space where they could sell
illegal material, or providing money or technological expertise to
illegally copy something from cyberspace.

"Technically speaking, none of these entities would be guilty of
infringement because they did not do the illegal copying
themselves," Bartholomew says. "But under the doctrine of
contributory infringement, they can be held liable and suffer the
same legal penalties as the direct infringer, the person who did
the copying."

And the idea of "contributory infringement" is much more common
than the legal term would indicate. Mainstream search engines such
as Google, Internet auction houses such as eBay and credit card
companies such as Visa have all faced major litigation accusing
them or their employees of knowing others were using their services
to illegally copy information, and holding them responsible for the
infringement of others. Colleges and universities who provide the
computer infrastructure that allows students to post and illegally
download digital files of copyrighted works also have been charged
under these contributory infringement laws.

"Think of any major Web site you use that allows people to post
content or search the Internet," Bartholomew says. "Chances are
that Web site has had to think long and hard about potential
liability for contributory infringement."

The problem comes when American judges look to use the legal
grounds used to punish those convicted of criminal laws for those
charged with violating intellectual property rights, according to
Bartholomew. Remaking contributory infringement law in criminal
law's image would be "a mistake," he says. Criminal law is used to
punish morally inappropriately behavior, Bartholomew says. "To act
immorally, you have to know what you are doing, and it is that
guilty mental state that criminal law tries to detect and
punish."

But intellectual property law is fueled by what Bartholomew
calls an "instrumental" principle. "It seeks to generate the
greatest number of expressive or inventive works in society as
possible, not to punish those who violate some sort of moral code."
In general terms, modern intellectual property law doesn't care if
you knew what you were doing was right or wrong. Instead, it is
concerned with what the aggregate effects are of your actions on
the larger society. In other words, intellectual property law asks
whether your conduct will result in less creative work being shared
with the world, Bartholomew says.

"It therefore makes sense for contributory infringement law to
focus more on the material-contribution side of the equation and
less on the mental state of accused individuals," he says. "The two
legal doctrines are trying to accomplish two different things."

Bartholomew's legal recommendations have major implications for
virtually everyone who uses these electronic platforms – "the
millions of individuals who engage in intellectual property
infringement every day," as he describes it -- as well as the giant
companies who have become the bellwethers for cyberspace
commerce.

"The courts are struggling with whether or not to hold these
Internet giants accountable. And this is a decision with big
implications for all of us," says Bartholomew. "If search engines
and Web sites displaying user-generated content find themselves
responsible for greater policing of their own sites to root out
infringement, that will cost a lot of money.

"If the standard for contributory infringement is set low
enough, Internet intermediaries would have to allocate millions to
hire staff to scan their own Web sites for infringing activity.
Some of them are already doing this. If the standard is too low and
the costs of policing the Web too onerous, this could even threaten
the survival of the Web sites that we use everyday. And if the
standard is too unpredictable, investment in innovative digital
technology may be chilled from concern over the paralyzing costs of
defending contributory infringement suits."

The University at Buffalo is a premier research-intensive public
university, a flagship institution in the State University of New
York system and its largest and most comprehensive campus. UB's
more than 28,000 students pursue their academic interests through
more than 300 undergraduate, graduate and professional degree
programs. Founded in 1846, the University at Buffalo is a member of
the Association of American Universities.

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